Argument preview: On the vagaries of post-conviction capital criminal procedure in Texas

Posted Fri, February 22nd, 2013 10:27 am by Steve Vladeck

I. Introduction

A number of states bar criminal defendants from raising certain challenges to their conviction on direct appeal – relegating such claims instead to collateral state post-conviction proceedings. Whatever the merits of such bifurcated review, they create a procedural tangle with regard to the right to counsel (and to the effective assistance thereof). Ever since Douglas v. California, the Supreme Court has been adamant that such a right attaches to direct appeals of criminal convictions. For nearly as long, the Court has declined to extend that right to collateral post-conviction proceedings – whether in state or federal court. Thus, where a defendant is only allowed to raise a challenge to his conviction for the first time in a state post-conviction proceeding, the question becomes which of those two venerable bodies of law should prevail.

When confronted with this question last Term in Martinez v. Ryan, the Justices sidestepped the issue, holding instead by a seven-to-two vote that, whether or not state criminal defendants have a right to the assistance of counsel in state post-conviction proceedings, the ineffective assistance of such post-conviction counsel with regard to claims that could not be raised on direct appeal will provide “cause” to excuse the defendant’s failure to raise those claims in those state post-conviction proceedings – and will therefore allow him to raise those claims for the first time in a federal post-conviction habeas petition. Thus, for example, where state law bars a defendant from challenging the effectiveness of his trial counsel on direct appeal, and where the same defendant’s post-conviction counsel is himself ineffective in challenging the effectiveness of trial counsel, the defendant will not be barred from attacking the ineffectiveness of his original trial counsel in his claim for federal habeas relief.

In Martinez, Arizona law was explicit that ineffective assistance claims could only be raised in collateral post-conviction proceedings. In at least some states, though, the law isn’t nearly as clear – raising the question the Justices will consider Monday morning when they hear argument in Trevino v. Thaler: Does Martinez only apply to claims that a defendant is formally banned from raising on direct appeal, or does it apply whenever state law effectively precludes the defendant from doing so? Indeed, although the parties frame the issue on narrower terms as whether “Martinez applies to Texas,” lurking behind that narrow question is a far broader one concerning whether the Supreme Court is truly willing to interject itself into case-by-case resolution of which defenses can be raised at which stages of the criminal proceedings in each state. Thus, while Martinez’s reasoning appears to compel an affirmative answer to that question, Trevino asks the seven Justices in the majority in Martinez to decide whether they’re really in for the whole pound – as opposed to Arizona’s penny.

II. Background

The case arises out of the brutal rape and murder of fifteen-year-old Linda Salinas in San Antonio, Texas, in June 1996. Carlos Trevino and three acquaintances were arrested and subsequently charged for their alleged roles in Salinas’s death. Although Trevino subsequently raised a serious Brady claim in his federal habeas petition with regard to a statement one of the co-defendants made to the police that arguably exculpated Trevino (and which was never turned over to Trevino’s trial counsel), his federal habeas petition alleged no other constitutional errors with the trial itself (and the Supreme Court declined to grant certiorari on the Brady issue). Instead, the constitutional issue underlying Monday’s argument is Trevino’s claim that his trial counsel rendered ineffective assistance of counsel during the penalty phase of his capital trial under Wiggins v. Smith by failing to present adequate mitigation evidence. Indeed, Trevino’s appointed trial counsel called only one witness during the penalty phase – Trevino’s aunt, who testified in general terms that Trevino had undergone a difficult childhood and that he was good with children. Trevino’s trial counsel otherwise conducted no mitigation investigation and presented no other evidence that might have been relevant, under Wiggins, to the jury’s assessment of Trevino’s moral culpability for a capital crime. After a seven-hour deliberation, the jury returned a sentence of death.

Pursuant to a series of reforms enacted by the Texas legislature in 1995 for capital cases, Trevino’s appeal of his conviction proceeded from there along two simultaneous tracks: a direct appeal of the conviction to the Texas Court of Criminal Appeals, and a simultaneous collateral post-conviction proceeding commenced in state trial court. And although Trevino’s appointed appellate and state habeas counsel both raised a series of challenges to Trevino’s conviction, neither attacked the ineffective assistance of Trevino’s trial counsel with regard to his failure to conduct any investigation of mitigation or to present any additional mitigation evidence at the penalty phase of Trevino’s trial. Instead, all of the claims raised in both cases were based entirely on the record developed at trial – and were promptly rejected by the state habeas court and the Texas Court of Criminal Appeals.

Trevino subsequently pursued federal habeas relief through new counsel, whose independent investigation uncovered a “wealth of evidence” that might have been relevant to the question of mitigating factors at the penalty phase – foremost among them that Trevino was repeatedly abused as a child, that he suffered a series of serious head injuries, and that he suffers from impaired cognitive abilities. Based on this evidence, Trevino’s new counsel argued that, under Wiggins, Trevino’s trial counsel had been ineffective at the penalty phase by failing to investigate potential mitigation evidence, let alone present such evidence to the jury.

Prior to the Supreme Court’s decision in Martinez,both the district court and the Fifth Circuit held that Trevino had defaulted those claims by failing to raise them in the relevant state proceedings. In his petition for certiorari, Trevino argued that, in light of Martinez, he had “cause” to excuse the procedural default, and so the case should be sent back to the district court for further proceedings on his federal habeas claims.

In its opposition to certiorari, Texas introduced a wrinkle: Although the state contested whether Trevino’s ineffective assistance of trial counsel claim was sufficiently “substantial” to warrant relief under Martinez, it also argued that Martinez categorically does not apply to Texas capital cases – because criminal defendants in Texas capital cases may pursue ineffective assistance claims on direct appeal, and so the ineffectiveness of post-conviction counsel is entirely irrelevant. Perhaps in light of that argument, rather than grant certiorari, vacate the decision below, and remand in light of Martinez (as the Court has done in over a half-dozen other cases thus far), the Court set the case for briefing and argument on the merits. [In between, the Court also stayed the execution of another Texas inmate – Anthony Cardell Haynes – whose pending petition for certiorari also raises a Martinez claim.] Thus, the question in Trevino is not how Martinez applies to the facts of Trevino’s case, but whether Martinez applies at all given the structure of capital post-conviction review in the Texas courts.

III. Arguments

Perhaps surprisingly, given this development, the parties’ briefing does not materially disagree on what Texas law formally allows. The Texas Court of Criminal Appeals, as Trevino argues, has emphasized that, “as a general rule, [a defendant] should not raise an issue of ineffective assistance on direct appeal.” In its brief on the merits, the state does not dispute that basic understanding. At the same time, as the state underscores in its brief, it is possible for Texas criminal defendants, unlike the Arizona defendant in Martinez,to prevail on ineffective assistance claims on direct appeal – and, indeed, it has happened in at least a handful of cases, including some, documented at pages 38–40 of the state’s brief, in which the ineffectiveness claim was based upon evidence outside the trial record.

In reply, Trevino does not dispute that it is formally possible to raise an IAC claim on direct appeal. Instead, his argument focuses on the practical difficulties of doing so, suggesting that the state’s examples are the limited exceptions that prove the rule. After all, as the Texas Court of Criminal Appeals has noted, the trial record will provide an insufficient basis on which to resolve an IAC claim in all but the most “extremely unusual circumstances.” At the same time, Texas law only allows for expanding the trial record on direct appeal through a motion for a new trial, which must itself be filed within thirty days of the date of sentencing. In other words, Trevino argues, Texas law makes it practically impossible for most defendants to raise most IAC claims on direct appeal, because it leaves their appellate counsel with only thirty days within which to investigate and substantiate such claims after sentencing (assuming appellate counsel is appointed and the trial transcript provided immediately after sentencing – neither of which is usually the case).

In addition to highlighting cases in which IAC claims were nevertheless raised successfully on direct appeal via the new-trial procedure, Texas’s principal response focuses on Martinez itself – and the extent to which the Court there adopted an “equitable,” rather than a “constitutional” remedy. No such remedy is required for Texas, the state concludes, because the equities already allow for the exact kind of relief Trevino claims he was unable to seek. Indeed, were the Court to accept Trevino’s invitation and turn the applicability of Martinez into a functional test that asks whether a formally available direct appeal is practically available in individual cases, that would, in effect, vitiate the Court’s prior suggestions that states are free to decide how to structure post-conviction review schemes – a point that twenty-five states elaborate upon in their amicus brief in support of Texas.

IV. Analysis

Ultimately, how the Justices rule in Trevino may well come down to whether they believe that Texas is unique in preferring, but not requiring, that ineffective assistance claims be raised on collateral post-conviction review. If the question is simply whether “Martinez applies to Texas,” the difficulty that defendants like Trevino face in adequately raising ineffective assistance claims on direct appeal may be enough to compel an affirmative answer. But if the question is, instead, whether Martinez always applies when it is practically difficult to raise ineffective assistance claims on direct appeal, that question may well present at least some of the Justices in the majority in Martinez witha federalism Rubicon that they are ill-inclined to cross.

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

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